Weighing history, GOP senators wrestle over Supreme Court votes

Mitt Romney and Roy Blunt are torn over the same Supreme Court quandary: whether to shake off GOP pressure to oppose Ketanji Brown Jackson and vote for the first Black woman justice.

Though Jackson hasn’t even had her confirmation hearing yet, the independent-minded Romney and retiring Blunt are trying to balance the historic nature of her nomination with her more liberal judicial philosophy. Romney voted against Jackson’s nomination to D.C.’s influential appellate court last year, and Blunt missed the vote. Now both find themselves weighing whether to treat her high court bid differently.

“It’s historic for an African American woman to be nominated,” Romney said in an interview. “My heart would like to be able to vote for her confirmation. But I will not do so unless I’m satisfied she is in the mainstream of judicial thought and consistent with what I think the course of our judicial philosophy will be.”

Blunt recently spoke to President Joe Biden about the Supreme Court vacancy. He said of Jackson: “I would love to vote for the first Black woman on the court. But at some point judicial philosophy will and should be a significant determining factor.”

Both plan to meet with Jackson soon, although neither serves on the Judiciary Committee and the full Senate’s unlikely to vote for at least a month. That the two senators — who don’t typically support Biden’s judges — are already grappling with whether to support her illustrates the political delicacy surrounding such a barrier-breaking pick. It’s simply not so easy for some Republicans to reflexively vote no.

At the moment, Jackson is expected to have full support from the 50-member Democratic caucus, who can confirm her without GOP votes. For Jackson’s backers and the White House, the question so far is not whether she will be confirmed to the Supreme Court, but by how big of a bipartisan margin.

And her nomination provides a test case for the durability of bitter partisanship over the Supreme Court, after Republicans changed the Senate rules in 2017 and pushed through three Trump justices. Justice Neil Gorsuch won over three Democrats; Justice Brett Kavanaugh snagged Sen. Joe Manchin (D-W.Va.); and Justice Amy Coney Barrett got no Democratic votes, becoming the first Supreme Court pick in at least 150 years not to receive support from the minority party.

Privately, Democrats aren’t expecting more than a handful of Republicans to support Jackson for the high court. Her nomination to her current position on the D.C. Circuit Court of Appeals last year only won three Republican votes. One of those senators who backed her, Lindsey Graham of South Carolina, is already describing Jackson as the pick of the “radical left.” Republicans do not expect Graham to vote for Jackson after lobbying hard for J. Michelle Childs, who was on Biden’s short list.

Senate Democrats, however, are hoping that the historic nature of Jackson’s nomination could convince some in the GOP to support her this time around. It doesn’t hurt that five Republican senators are retiring, relieving them of electoral considerations.

“My first appeal to them is this is a moment in the history of the United States, and I always want to try to be on the right side of history,” Senate Judiciary Chair Dick Durbin (D-Ill.) told reporters. “I hope that they’ll consider it and give her a second look if the first time around if they didn’t support her.”

In interviews with Senate Republicans this week, several said they’re not closing the door on Jackson’s nomination and that their previous votes against her aren’t necessarily a final verdict on whether they’ll back her as a replacement for retiring Justice Stephen Breyer. Sen. Thom Tillis (R-N.C.) said that he is approaching the process “objectively,” noting ”there’s a lot more information that will be covered in a Supreme Court hearing than normally covered in a circuit court hearing.”

Sen. Shelley Moore Capito (R-W.Va.), meanwhile, is “keeping an open mind” and wants to meet with Jackson. “I don’t know her and I would like to have a chance to see what happens in the Judiciary Committee,” she added.

Jackson is expected to meet with more Republican senators next week, including Tillis and Sen. Susan Collins (R-Maine), who voted for her last year and appears to be the likeliest GOP senator to cross party lines and support the Supreme Court pick.

Supporting or opposing a judge for a circuit court vacancy doesn’t always translate to a “yes” or “no” vote for the Supreme Court. But given the higher stakes for a Supreme Court confirmation, it can be easier for a judge to win support for a lower court vacancy. For example, Sens. Tim Kaine (D-Va.) and Manchin backed Barrett’s nomination to the Seventh Circuit but voted against her for the Supreme Court.

Senate Democratic leaders want to confirm Jackson before the April 9 Easter recess and appear on track to meet that goal. Former Sen. Doug Jones (D-Ala.), Jackson’s sherpa, said Wednesday that the White House is “hoping to get in to see as many senators as possible before the hearing, but we will also get in to see [them] after the hearing, before the vote.”

Senate Minority Whip John Thune predicted most Republicans would meet with Jackson. Some Republicans may meet with her after her hearings, which could elongate consideration of Jackson’s nominations by a few days.

Sen. Rob Portman (R-Ohio), who is retiring, said he plans to meet with Jackson before her hearing, given that the White House is “eager to have meetings before.” He added that his team will “do a careful analysis of the decisions and where she fits in the spectrum.” Meanwhile, Sen. Richard Burr (R-N.C.), who is also retiring, said he hasn’t “even thought about” meeting with her yet. Burr said he is “open to every nomination” but noted he “voted against her already.”

Despite some initial GOP criticism of Biden’s pledge to nominate a Black woman to the Supreme Court, most Senate Republicans are relatively reserved about her nomination since Jackson’s confirmation won’t shift the balance of the court. They say they will treat Biden’s pick fairly and avoid reprising the bitter nature of the confirmation hearings for Kavanaugh, who faced sexual assault allegations.

Senate Minority Leader Mitch McConnell said Thursday morning that Republicans will be respectful, while also ensuring that the Senate provides a “vigorous, exhaustive and painstaking” process.

Thune said GOP leadership hasn’t decided whether they will whip against Jackson’s nomination. Nonetheless, he would be surprised if Jackson received more than two to three GOP votes.

“People are going to keep open minds about it. But philosophically, she’s going to be in a very different place about what the role of a justice is,” he said. ”But she did get a few votes when she was up for the circuit. And we’ll just see how the process plays out.”

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